BILL NUMBER: AB 176 CHAPTERED
BILL TEXT
CHAPTER 263
FILED WITH SECRETARY OF STATE SEPTEMBER 9, 2013
APPROVED BY GOVERNOR SEPTEMBER 9, 2013
PASSED THE SENATE AUGUST 26, 2013
PASSED THE ASSEMBLY AUGUST 30, 2013
AMENDED IN SENATE AUGUST 14, 2013
AMENDED IN ASSEMBLY APRIL 8, 2013
INTRODUCED BY Assembly Member Campos
JANUARY 24, 2013
An act to amend Sections 3100, 6383, and 6405 of the Family Code,
and to amend Section 136.2 of the Penal Code, relating to family law.
LEGISLATIVE COUNSEL'S DIGEST
AB 176, Campos. Family law: protective and restraining orders.
Existing law requires that, subject to specified limitations, an
emergency protective order be enforced before any other protective or
restraining order that has been issued. If there is no emergency
protective order that takes precedence in enforcement and there is
more than one civil protective or restraining order regarding the
same parties, existing law generally requires a peace officer to
enforce the order issued last. If there is no emergency protective
order that takes precedence in enforcement and both criminal and
civil protective or restraining orders have been issued regarding the
same parties, existing law generally requires an officer to enforce
the criminal order issued last.
This bill would, as of July 1, 2014, instead require that a
no-contact order has precedence in enforcement if more than one
protective or restraining order has been issued, none of which is an
emergency protective order that takes precedence in enforcement, and
one of the orders that has been issued is a no-contact order, as
described. This bill would also make related, conforming changes.
This bill would also incorporate changes in Section 136.2 of the
Penal Code proposed by AB 307, that would become operative on the
date this bill becomes operative only if AB 307 and this bill are
both chaptered and become effective on or before January 1, 2014, and
this bill is chaptered last.
THE PEOPLE OF THE STATE OF CALIFORNIA DO ENACT AS FOLLOWS:
SECTION 1. Section 3100 of the Family Code is amended to read:
3100. (a) In making an order pursuant to Chapter 4 (commencing
with Section 3080), the court shall grant reasonable visitation
rights to a parent unless it is shown that the visitation would be
detrimental to the best interest of the child. In the discretion of
the court, reasonable visitation rights may be granted to any other
person having an interest in the welfare of the child.
(b) If a protective order, as defined in Section 6218, has been
directed to a parent, the court shall consider whether the best
interest of the child requires that any visitation by that parent be
limited to situations in which a third person, specified by the
court, is present, or whether visitation shall be suspended or
denied. The court shall include in its deliberations a consideration
of the nature of the acts from which the parent was enjoined and the
period of time that has elapsed since that order. A parent may submit
to the court the name of a person that the parent deems suitable to
be present during visitation.
(c) If visitation is ordered in a case in which domestic violence
is alleged and an emergency protective order, protective order, or
other restraining order has been issued, the visitation order shall
specify the time, day, place, and manner of transfer of the child, so
as to limit the child's exposure to potential domestic conflict or
violence and to ensure the safety of all family members. If a
criminal protective order has been issued pursuant to Section 136.2
of the Penal Code, the visitation order shall make reference to, and,
unless there is an emergency protective order that has precedence in
enforcement pursuant to paragraph (1) of subdivision (c) of Section
136.2 of the Penal Code or a no-contact order, as described in
Section 6320, acknowledge the precedence of enforcement of, an
appropriate criminal protective order.
(d) If the court finds a party is staying in a place designated
as a shelter for victims of domestic violence or other confidential
location, the court's order for time, day, place, and manner of
transfer of the child for visitation shall be designed to prevent
disclosure of the location of the shelter or other confidential
location.
SEC. 2. Section 6383 of the Family Code is amended to read:
6383. (a) A temporary restraining order or emergency protective
order issued under this part shall, on request of the petitioner, be
served on the respondent, whether or not the respondent has been
taken into custody, by a law enforcement officer who is present at
the scene of reported domestic violence involving the parties to the
proceeding.
(b) The petitioner shall provide the officer with an endorsed copy
of the order and a proof of service that the officer shall complete
and transmit to the issuing court.
(c) It is a rebuttable presumption that the proof of service was
signed on the date of service.
(d) Upon receiving information at the scene of a domestic violence
incident that a protective order has been issued under this part, or
that a person who has been taken into custody is the respondent to
that order, if the protected person cannot produce an endorsed copy
of the order, a law enforcement officer shall immediately inquire of
the Department of Justice Domestic Violence Restraining Order System
to verify the existence of the order.
(e) If the law enforcement officer determines that a protective
order has been issued, but not served, the officer shall immediately
notify the respondent of the terms of the order and where a written
copy of the order can be obtained and the officer shall, at that
time, also enforce the order. The law enforcement officer's verbal
notice of the terms of the order shall constitute service of the
order and is sufficient notice for the purposes of this section and
for the purposes of Sections 273.6 and 29825 of the Penal Code.
(f) If a report is required under Section 13730 of the Penal Code,
or if no report is required, then in the daily incident log, the
officer shall provide the name and assignment of the officer
notifying the respondent pursuant to subdivision (e) and the case
number of the order.
(g) Upon service of the order outside of the court, a law
enforcement officer shall advise the respondent to go to the local
court to obtain a copy of the order containing the full terms and
conditions of the order.
(h) (1) There shall be no civil liability on the part of, and no
cause of action for, false arrest or false imprisonment against a
peace officer who makes an arrest pursuant to a protective or
restraining order that is regular upon its face, if the peace
officer, in making the arrest, acts in good faith and has reasonable
cause to believe that the person against whom the order is issued has
notice of the order and has committed an act in violation of the
order.
(2) If there is more than one order issued and one of the orders
is an emergency protective order that has precedence in enforcement
pursuant to paragraph (1) of subdivision (c) of Section 136.2 of the
Penal Code, the peace officer shall enforce the emergency protective
order. If there is more than one order issued, none of the orders
issued is an emergency protective order that has precedence in
enforcement, and one of the orders issued is a no-contact order, as
described in Section 6320, the peace officer shall enforce the
no-contact order. If there is more than one civil order regarding the
same parties and neither an emergency protective order that has
precedence in enforcement nor a no-contact order has been issued, the
peace officer shall enforce the order that was issued last. If there
are both civil and criminal orders regarding the same parties and
neither an emergency protective order that has precedence in
enforcement nor a no-contact order has been issued, the peace officer
shall enforce the criminal order issued last, subject to the
provisions of subdivisions (h) and (i) of Section 136.2 of the Penal
Code. Nothing in this section shall be deemed to exonerate a peace
officer from liability for the unreasonable use of force in the
enforcement of the order. The immunities afforded by this section
shall not affect the availability of any other immunity that may
apply, including, but not limited to, Sections 820.2 and 820.4 of the
Government Code.
SEC. 3. Section 6405 of the Family Code is amended to read:
6405. (a) There shall be no civil liability on the part of, and
no cause of action for false arrest or false imprisonment against, a
peace officer who makes an arrest pursuant to a foreign protection
order that is regular upon its face, if the peace officer, in making
the arrest, acts in good faith and has reasonable cause to believe
that the person against whom the order is issued has notice of the
order and has committed an act in violation of the order.
(b) If there is more than one order issued and one of the orders
is an emergency protective order that has precedence in enforcement
pursuant to paragraph (1) of subdivision (c) of Section 136.2 of the
Penal Code, the peace officer shall enforce the emergency protective
order. If there is more than one order issued, none of the orders
issued is an emergency protective order that has precedence in
enforcement, and one of the orders issued is a no-contact order, as
described in Section 6320, the peace officer shall enforce the
no-contact order. If there is more than one civil order regarding the
same parties and neither an emergency protective order that has
precedence in enforcement nor a no-contact order has been issued, the
peace officer shall enforce the order that was issued last. If there
are both civil and criminal orders regarding the same parties and
neither an emergency protective order that has precedence in
enforcement nor a no-contact order has been issued, the peace officer
shall enforce the criminal order issued last.
(c) Nothing in this section shall be deemed to exonerate a peace
officer from liability for the unreasonable use of force in the
enforcement of the order. The immunities afforded by this section
shall not affect the availability of any other immunity that may
apply, including, but not limited to, Sections 820.2 and 820.4 of the
Government Code.
SEC. 4. Section 136.2 of the Penal Code is amended to read:
136.2. (a) Upon a good cause belief that harm to, or
intimidation or dissuasion of, a victim or witness has occurred or is
reasonably likely to occur, a court with jurisdiction over a
criminal matter may issue orders, including, but not limited to, the
following:
(1) An order issued pursuant to Section 6320 of the Family Code.
(2) An order that a defendant shall not violate any provision of
Section 136.1.
(3) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1.
(4) An order that a person described in this section shall have no
communication whatsoever with a specified witness or a victim,
except through an attorney under reasonable restrictions that the
court may impose.
(5) An order calling for a hearing to determine if an order as
described in paragraphs (1) to (4), inclusive, should be issued.
(6) (A) An order that a particular law enforcement agency within
the jurisdiction of the court provide protection for a victim or a
witness, or both, or for immediate family members of a victim or a
witness who reside in the same household as the victim or witness or
within reasonable proximity of the victim's or witness' household, as
determined by the court. The order shall not be made without the
consent of the law enforcement agency except for limited and
specified periods of time and upon an express finding by the court of
a clear and present danger of harm to the victim or witness or
immediate family members of the victim or witness.
(B) For purposes of this paragraph, "immediate family members"
include the spouse, children, or parents of the victim or witness.
(7) (A) An order protecting victims of violent crime from all
contact by the defendant, or contact, with the intent to annoy,
harass, threaten, or commit acts of violence, by the defendant. The
court or its designee shall transmit orders made under this paragraph
to law enforcement personnel within one business day of the
issuance, modification, extension, or termination of the order,
pursuant to subdivision (a) of Section 6380 of the Family Code. It is
the responsibility of the court to transmit the modification,
extension, or termination orders made under this paragraph to the
same agency that entered the original protective order into the
Domestic Violence Restraining Order System.
(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, the court on
its own motion shall consider issuing a protective order upon a good
cause belief that harm to, or intimidation or dissuasion of, a victim
or witness has occurred or is reasonably likely to occur, that
provides as follows:
(I) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(II) The defendant shall relinquish any firearms that he or she
owns or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(ii) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm while this protective
order is in effect is punishable pursuant to Section 29825.
(C) An order issued, modified, extended, or terminated by a court
pursuant to this paragraph shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(D) A protective order issued under this paragraph may require the
defendant to be placed on electronic monitoring if the local
government, with the concurrence of the county sheriff or the chief
probation officer with jurisdiction, adopts a policy to authorize
electronic monitoring of defendants and specifies the agency with
jurisdiction for this purpose. If the court determines that the
defendant has the ability to pay for the monitoring program, the
court shall order the defendant to pay for the monitoring. If the
court determines that the defendant does not have the ability to pay
for the electronic monitoring, the court may order electronic
monitoring to be paid for by the local government that adopted the
policy to authorize electronic monitoring. The duration of electronic
monitoring shall not exceed one year from the date the order is
issued. At no time shall the electronic monitoring be in place if the
protective order is not in place.
(b) A person violating an order made pursuant to paragraphs (1) to
(7), inclusive, of subdivision (a) may be punished for any
substantive offense described in Section 136.1, or for a contempt of
the court making the order. A finding of contempt shall not be a bar
to prosecution for a violation of Section 136.1. However, a person so
held in contempt shall be entitled to credit for punishment imposed
therein against a sentence imposed upon conviction of an offense
described in Section 136.1. A conviction or acquittal for a
substantive offense under Section 136.1 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
(c) (1) (A) Notwithstanding subdivision (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 shall have precedence in enforcement over any other
restraining or protective order, provided the emergency protective
order meets all of the following requirements:
(i) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(ii) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective order
specified in subparagraph (A).
(iii) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A).
(B) An emergency protective order that meets the requirements of
paragraph (1) shall have precedence in enforcement over the
provisions of any other restraining or protective order only with
respect to those provisions of the emergency protective order that
are more restrictive in relation to the restrained person.
(2) Except as described in paragraph (1), a no-contact order, as
described in Section 6320 of the Family Code, shall have precedence
in enforcement over any other restraining or protective order.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) A person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to Section 29825.
(e) (1) In all cases where the defendant is charged with a crime
of domestic violence, as defined in Section 13700, the court shall
consider issuing the above-described orders on its own motion. All
interested parties shall receive a copy of those orders. In order to
facilitate this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court to this
issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, except as described in subdivision
(c), a restraining order or protective order against the defendant
issued by the criminal court in that case has precedence in
enforcement over a civil court order against the defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and, if there is not an emergency protective order
that has precedence in enforcement pursuant to paragraph (1) of
subdivision (c), or a no-contact order, as described in Section 6320
of the Family Code, acknowledge the precedence of enforcement of, an
appropriate criminal protective order. On or before July 1, 2014, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for ensuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) An order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no-contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) In any case in which a complaint, information, or indictment
charging a crime of domestic violence, as defined in Section 13700,
has been filed, the court may consider, in determining whether good
cause exists to issue an order under paragraph (1) of subdivision
(a), the underlying nature of the offense charged, and the
information provided to the court pursuant to Section 273.75.
(i) (1) In all cases in which a criminal defendant has been
convicted of a crime of domestic violence as defined in Section
13700, the court, at the time of sentencing, shall consider issuing
an order restraining the defendant from any contact with the victim.
The order may be valid for up to 10 years, as determined by the
court. This protective order may be issued by the court regardless of
whether the defendant is sentenced to the state prison or a county
jail, or whether imposition of sentence is suspended and the
defendant is placed on probation. It is the intent of the Legislature
in enacting this subdivision that the duration of any restraining
order issued by the court be based upon the seriousness of the facts
before the court, the probability of future violations, and the
safety of the victim and his or her immediate family.
(2) An order under this subdivision may include provisions for
electronic monitoring if the local government, upon receiving the
concurrence of the county sheriff or the chief probation officer with
jurisdiction, adopts a policy authorizing electronic monitoring of
defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order the electronic monitoring to be paid
for by the local government that adopted the policy authorizing
electronic monitoring. The duration of the electronic monitoring
shall not exceed one year from the date the order is issued.
(j) For purposes of this section, "local government" means the
county that has jurisdiction over the protective order.
SEC. 4.5. Section 136.2 of the Penal Code is amended to read:
136.2. (a) Upon a good cause belief that harm to, or intimidation
or dissuasion of, a victim or witness has occurred or is reasonably
likely to occur, a court with jurisdiction over a criminal matter may
issue orders, including, but not limited to, the following:
(1) An order issued pursuant to Section 6320 of the Family Code.
(2) An order that a defendant shall not violate any provision of
Section 136.1.
(3) An order that a person before the court other than a
defendant, including, but not limited to, a subpoenaed witness or
other person entering the courtroom of the court, shall not violate
any provisions of Section 136.1.
(4) An order that a person described in this section shall have no
communication whatsoever with a specified witness or a victim,
except through an attorney under reasonable restrictions that the
court may impose.
(5) An order calling for a hearing to determine if an order as
described in paragraphs (1) to (4), inclusive, should be issued.
(6) (A) An order that a particular law enforcement agency within
the jurisdiction of the court provide protection for a victim or a
witness, or both, or for immediate family members of a victim or a
witness who reside in the same household as the victim or witness or
within reasonable proximity of the victim's or witness' household, as
determined by the court. The order shall not be made without the
consent of the law enforcement agency except for limited and
specified periods of time and upon an express finding by the court of
a clear and present danger of harm to the victim or witness or
immediate family members of the victim or witness.
(B) For purposes of this paragraph, "immediate family members"
include the spouse, children, or parents of the victim or witness.
(7) (A) An order protecting victims of violent crime from all
contact by the defendant, or contact, with the intent to annoy,
harass, threaten, or commit acts of violence, by the defendant. The
court or its designee shall transmit orders made under this paragraph
to law enforcement personnel within one business day of the
issuance, modification, extension, or termination of the order,
pursuant to subdivision (a) of Section 6380 of the Family Code. It is
the responsibility of the court to transmit the modification,
extension, or termination orders made under this paragraph to the
same agency that entered the original protective order into the
Domestic Violence Restraining Order System.
(B) (i) If a court does not issue an order pursuant to
subparagraph (A) in a case in which the defendant is charged with a
crime of domestic violence as defined in Section 13700, the court on
its own motion shall consider issuing a protective order upon a good
cause belief that harm to, or intimidation or dissuasion of, a victim
or witness has occurred or is reasonably likely to occur, that
provides as follows:
(I) The defendant shall not own, possess, purchase, receive, or
attempt to purchase or receive, a firearm while the protective order
is in effect.
(II) The defendant shall relinquish any firearms that he or she
owns or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(ii) Every person who owns, possesses, purchases, or receives, or
attempts to purchase or receive, a firearm while this protective
order is in effect is punishable pursuant to Section 29825.
(C) An order issued, modified, extended, or terminated by a court
pursuant to this paragraph shall be issued on forms adopted by the
Judicial Council of California and that have been approved by the
Department of Justice pursuant to subdivision (i) of Section 6380 of
the Family Code. However, the fact that an order issued by a court
pursuant to this section was not issued on forms adopted by the
Judicial Council and approved by the Department of Justice shall not,
in and of itself, make the order unenforceable.
(D) A protective order issued under this paragraph may require the
defendant to be placed on electronic monitoring if the local
government, with the concurrence of the county sheriff or the chief
probation officer with jurisdiction, adopts a policy to authorize
electronic monitoring of defendants and specifies the agency with
jurisdiction for this purpose. If the court determines that the
defendant has the ability to pay for the monitoring program, the
court shall order the defendant to pay for the monitoring. If the
court determines that the defendant does not have the ability to pay
for the electronic monitoring, the court may order electronic
monitoring to be paid for by the local government that adopted the
policy to authorize electronic monitoring. The duration of electronic
monitoring shall not exceed one year from the date the order is
issued. At no time shall the electronic monitoring be in place if the
protective order is not in place.
(b) A person violating an order made pursuant to paragraphs (1) to
(7), inclusive, of subdivision (a) may be punished for any
substantive offense described in Section 136.1, or for a contempt of
the court making the order. A finding of contempt shall not be a bar
to prosecution for a violation of Section 136.1. However, a person so
held in contempt shall be entitled to credit for punishment imposed
therein against a sentence imposed upon conviction of an offense
described in Section 136.1. A conviction or acquittal for a
substantive offense under Section 136.1 shall be a bar to a
subsequent punishment for contempt arising out of the same act.
(c) (1) (A) Notwithstanding subdivision (e), an emergency
protective order issued pursuant to Chapter 2 (commencing with
Section 6250) of Part 3 of Division 10 of the Family Code or Section
646.91 shall have precedence in enforcement over any other
restraining or protective order, provided the emergency protective
order meets all of the
following requirements:
(i) The emergency protective order is issued to protect one or
more individuals who are already protected persons under another
restraining or protective order.
(ii) The emergency protective order restrains the individual who
is the restrained person in the other restraining or protective order
specified in subparagraph (A).
(iii) The provisions of the emergency protective order are more
restrictive in relation to the restrained person than are the
provisions of the other restraining or protective order specified in
subparagraph (A).
(B) An emergency protective order that meets the requirements of
paragraph (1) shall have precedence in enforcement over the
provisions of any other restraining or protective order only with
respect to those provisions of the emergency protective order that
are more restrictive in relation to the restrained person.
(2) Except as described in paragraph (1), a no-contact order, as
described in Section 6320 of the Family Code, shall have precedence
in enforcement over any other restraining or protective order.
(d) (1) A person subject to a protective order issued under this
section shall not own, possess, purchase, receive, or attempt to
purchase or receive a firearm while the protective order is in
effect.
(2) The court shall order a person subject to a protective order
issued under this section to relinquish any firearms he or she owns
or possesses pursuant to Section 527.9 of the Code of Civil
Procedure.
(3) A person who owns, possesses, purchases or receives, or
attempts to purchase or receive a firearm while the protective order
is in effect is punishable pursuant to Section 29825.
(e) (1) In all cases where the defendant is charged with a crime
of domestic violence, as defined in Section 13700, the court shall
consider issuing the above-described orders on its own motion. All
interested parties shall receive a copy of those orders. In order to
facilitate this, the court's records of all criminal cases involving
domestic violence shall be marked to clearly alert the court to this
issue.
(2) In those cases in which a complaint, information, or
indictment charging a crime of domestic violence, as defined in
Section 13700, has been issued, except as described in subdivision
(c), a restraining order or protective order against the defendant
issued by the criminal court in that case has precedence in
enforcement over a civil court order against the defendant.
(3) Custody and visitation with respect to the defendant and his
or her minor children may be ordered by a family or juvenile court
consistent with the protocol established pursuant to subdivision (f),
but if ordered after a criminal protective order has been issued
pursuant to this section, the custody and visitation order shall make
reference to, and, if there is not an emergency protective order
that has precedence in enforcement pursuant to paragraph (1) of
subdivision (c), or a no-contact order, as described in Section 6320
of the Family Code, acknowledge the precedence of enforcement of, an
appropriate criminal protective order. On or before July 1, 2014, the
Judicial Council shall modify the criminal and civil court forms
consistent with this subdivision.
(f) On or before January 1, 2003, the Judicial Council shall
promulgate a protocol, for adoption by each local court in
substantially similar terms, to provide for the timely coordination
of all orders against the same defendant and in favor of the same
named victim or victims. The protocol shall include, but shall not be
limited to, mechanisms for ensuring appropriate communication and
information sharing between criminal, family, and juvenile courts
concerning orders and cases that involve the same parties, and shall
permit a family or juvenile court order to coexist with a criminal
court protective order subject to the following conditions:
(1) An order that permits contact between the restrained person
and his or her children shall provide for the safe exchange of the
children and shall not contain language either printed or handwritten
that violates a "no-contact order" issued by a criminal court.
(2) Safety of all parties shall be the courts' paramount concern.
The family or juvenile court shall specify the time, day, place, and
manner of transfer of the child, as provided in Section 3100 of the
Family Code.
(g) On or before January 1, 2003, the Judicial Council shall
modify the criminal and civil court protective order forms consistent
with this section.
(h) In any case in which a complaint, information, or indictment
charging a crime of domestic violence, as defined in Section 13700,
has been filed, the court may consider, in determining whether good
cause exists to issue an order under paragraph (1) of subdivision
(a), the underlying nature of the offense charged, and the
information provided to the court pursuant to Section 273.75.
(i) (1) In all cases in which a criminal defendant has been
convicted of a crime of domestic violence as defined in Section
13700, a violation of Section 261, 261.5, or 262, or any crime that
requires the defendant to register pursuant to subdivision (c) of
Section 290, the court, at the time of sentencing, shall consider
issuing an order restraining the defendant from any contact with the
victim. The order may be valid for up to 10 years, as determined by
the court. This protective order may be issued by the court
regardless of whether the defendant is sentenced to the state prison
or a county jail, or whether imposition of sentence is suspended and
the defendant is placed on probation. It is the intent of the
Legislature in enacting this subdivision that the duration of any
restraining order issued by the court be based upon the seriousness
of the facts before the court, the probability of future violations,
and the safety of the victim and his or her immediate family.
(2) An order under this subdivision may include provisions for
electronic monitoring if the local government, upon receiving the
concurrence of the county sheriff or the chief probation officer with
jurisdiction, adopts a policy authorizing electronic monitoring of
defendants and specifies the agency with jurisdiction for this
purpose. If the court determines that the defendant has the ability
to pay for the monitoring program, the court shall order the
defendant to pay for the monitoring. If the court determines that the
defendant does not have the ability to pay for the electronic
monitoring, the court may order the electronic monitoring to be paid
for by the local government that adopted the policy authorizing
electronic monitoring. The duration of the electronic monitoring
shall not exceed one year from the date the order is issued.
(j) For purposes of this section, "local government" means the
county that has jurisdiction over the protective order.
SEC. 5. The provisions of this act shall become operative on July
1, 2014.
SEC. 6. Section 4.5 of this bill incorporates amendments to
Section 136.2 of the Penal Code proposed by this bill and Assembly
Bill 307. It shall only become operative if (1) both bills are
enacted and become effective on or before January 1, 2014, (2) each
bill amends Section 136.2 of the Penal Code, and (3) this bill is
enacted after Assembly Bill 307, in which case Section 136.2 of the
Penal Code, as amended by Assembly Bill 307, shall remain operative
only until the operative date of this bill, at which time Section 4.5
of this bill shall become operative, and Section 4 of this bill
shall not become operative.